Reaching into a person's mind to revive repressed memories is an issue that's settled law in one sense, but what
remains unsettled is how such memories are used during litigation and whether a lawsuit should be tossed or allowed to proceed
The Indiana Supreme Court said these memories are reliable enough to be taken to a jury, but in the decade since the court
ruled, it's yet to happen. Judges throughout the state and country have been divided in their findings about the time
that should be allowed to file a lawsuit once memories are recovered about possible molestation that happened to someone during
childhood, decades after the abuse may have happened.
Now, in the context of Catholic priest abuse cases, questions that have lingered within Hoosier caselaw since the early 1990s
could be closer to a final bright-line resolution. That is, if attorneys decide to appeal a recent ruling from Marion Superior
Judge David Dreyer, who on Jan. 20 declined to grant summary judgment in a Catholic priest abuse case. The trial judge's
decision allows a jury to consider those repressed memories and keeps the Archdiocese of Indianapolis as a defendant.
Analyzing the issues involving repressed memories that are the subject of the Marion County cases and others statewide and
nationally, Indiana University Maurer School of Law – Bloomington professor Alex Tanford said this might be the time for Indiana
appellate courts to offer more guidance on the practical aspects of repressed memory cases. While it's settled law that
repressed memory validity is something for a jury's consideration, he said state courts haven't yet worked out a bright
line for the admissibility of this type of expert testimony or how those memories were actually recovered.
In John Doe RG v. Archdiocese of Indianapolis, et al., No. 49D10-0509-CT-035390, a 44-year-old man claims that during
the 1970s when he was a 10-year-old parishioner at St. Andrew Catholic Church, he was repeatedly molested by former Indianapolis
priest Harry Monroe. He kept quiet about it until later in life, but when he started experiencing problems at work and in
relationships, he began counseling in 2003. That's when an initial "image flash" of one of the abuse instances
came to light, and more detailed memories followed before he eventually hired legal counsel. RG filed a lawsuit against the
archdiocese in 2005 after going through counseling and rediscovering what had happened, and he accused the church of keeping
the priest's abuse hidden.
Arguing for summary judgment, the archdiocese filed multiple motions – one that stated RG filed the suit past the twoyear
statute of limitations that exists once he turned 18. But Judge Dreyer's ruling keeps the claims alive, finding that the
man took due diligence in filing the suit after the memories resurfaced.
Judge Dreyer wrote that the man experienced a "tumultuous journey" after that initial image flash, and the subsequent
confusion and avoidance all led up to his eventual lawsuit being filed just before the two years expired from the time the
memories were initially recovered.
The guiding standard on whether repressed memories about childhood abuse can be used during litigation comes from the Indiana
Supreme Court case of Doe v. Shults-Lewis Child & Family Services, 718 N.E.2d 738, 748 (Ind. 1999). Justices
established a five-prong test that any adult plaintiff must meet when asserting a claim of tortious conduct committed against
him or her as a child, and when that action is beyond the typical statute of limitations period for someone who isn't
A person must: show a parent didn't know about the conduct or worked to conceal it; prove what happened; show the defendant
breached a duty to inform or engaged in wrongful conduct preventing the plaintiff from discovering what happened within that
statutory timeframe; provide expert opinion supporting the repressed memory validity; and show the plaintiff exercised due
diligence in commencing the action after a reasonable time of recovering memories.
That fifth prong is one of the most significant aspects of Judge Dreyer's ruling: whether due diligence was taken. Other
judges throughout the state, including Marion Superior Judge John Hanley, have ruled opposite of what their colleague did
in priest abuse cases involving repressed memories and due diligence. Allen Circuit Judge Alan Levine in August 2009 made
a similar finding to what Judge Dreyer now has, finding that a client there used due diligence despite a lack of guidance
from higher courts on what that means. That Fort Wayne case is still ongoing, though Judge Levine last year dismissed the
archdiocese as a defendant.
Meanwhile, Judge Hanley in Marion County ruled in late 2007 that a litigant there wasn't diligent in filing a suit against
a Catholic priest 25 years after alleged abuse; repressed memories led to re-discovering the abuse in November 2001 but the
person waited more than 16 months to file the suit.
But in analyzing due-diligence standards on which other jurists have ruled differently, Judge Dreyer in the RG decision turned
to the standards used to determine due diligence in medical malpractice cases.
"On the other hand, Indiana common law also shows an analogous bright line rule from some medical malpractice cases,
that is, if the 'discovery' date is more than two years beyond the occurrence, the patient has two more years after
discovery within which to file the action," he wrote. "There is no evidence of tardiness in this tale."
Aside from the issue of repressed memories, Judge Dreyer's ruling also deals with the church's respondeat superior:
whether the archdiocese can be held liable for conduct of one of its employees, the priest. He ruled that Indiana precedent
shows there is a factual question about whether there was any duty or fraudulent concealment, and that's something a jury
Judge Dreyer issued another ruling on a different case, John Doe CT v. Archdiocese of Indianapolis, et al., No.
49D10-0509-CT-037304, that doesn't involve repressed memories but does relate to whether the archdiocese can be held liable.
In that case, he decided differently and granted summary judgment on the respondeat superior claims but denied dismissal on
duty and fraudulent concealment.
Attorneys expressed reactions that were consistent with the parties they represent in this litigation, but it's clear
all sides are forced to handle the issues on a case-bycase basis because of the little guidance currently available.
Minnesota attorney Pat Noaker, who's representing RG and all 13 plaintiffs suing Father Monroe and the archdiocese, said
this reinforces Indiana's tradition of letting cases go before a jury.
"Most other states allow repressed memory cases to go before a jury, and if that happens here, it could be the first
time in Indiana," he said. "But the archdiocese has left no stone unturned in filing motions in this litigation,
so it's tough to say what will happen next."
Indianapolis attorney John S. "Jay" Mercer, who represents the archdiocese, said a decision hasn't been made
about whether to file an interlocutory appeal. He has until mid-February to make a decision.
"This does come as a surprise, particularly when a judge right across the hall has reached a different conclusion,"
he said about Judge Dreyer's ruling. "He doesn't make a final decision about repressed memory being reliable
but that he'll allow that at this stage. I think it says that at this summary judgment stage, there's a lower standard
of reliability than what you might have in court at trial. I'm not sure if this is a change in the law or not, but it's
significant when you're bringing a new science into courts about how reliable that is."
Following the ruling, Mercer filed a motion for bifurcation so that a jury could split the issue of statute of limitations
and then decide whether to proceed once that decision has been reached.
Mercer added that the church's position remains that repressed memory use is a new science that's heading in the
direction of not being a recognized theory, and that it's being discredited. He also said a question could arise about
whether repression expert witnesses will be allowed to testify or how reliable their theories might be, but that falls under
the Evidence Rule 702 standard on expert witnesses.